and Submitted July 14, 2017 San Francisco, California
from the United States District Court No.
2:12-cv-01710-TLN-CKD for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Christopher E. Skinnell (argued) and James R. Parrinello,
Nielsen Merksamer Parrinello Gross & Leoni LLP, San
Rafael, California; Cathy A. Christian, Nielsen Merksamer
Parrinello Gross & Leoni LLP, Sacramento, California; for
L. Smeltzer (argued), Katherine J. Barton, and Judith
Rabinowitz, Attorneys; John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division, United
States Department of Justice, Washington, D.C.; Matthew
Kelly, Office of the Solicitor, United States Department of
the Interior, Washington, D.C.; for Defendants-Appellees.
L. Levine (argued) and Timothy Q. Evans, Holland & Knight
LLP, Los Angeles, California, for
Before: Susan P. Graber and Michelle T. Friedland, Circuit
Judges, and Jeremy D. Fogel [*] District Judge.
panel affirmed the district court's summary judgment in
favor of the U.S. Department of the Interior and the Ione
Band of Miwok Indians in a case involving a proposed casino
in Amador County, California, and the County's challenge
to a Department of the Interior 2012 record of decision in
which the agency announced its intention to take land into
trust - the Plymouth Parcels - for the benefit of the Ione
Band, and to allow the Ione Band to build a casino complex on
Carcieri v. Salazar, 555 U.S. 379, 395 (2009), the
U.S. Supreme Court ruled that a tribe must have been
"under Federal jurisdiction" at the time the Indian
Reorganization Act ("IRA") was enacted in 1934 in
order to qualify to have lands taken into trust for its
panel held that a tribe qualifies to have land taken into
trust for its benefit under 25 U.S.C. § 5108 of the IRA
if it was "under Federal jurisdiction" as
of June 18, 1934, and is "recognized" at
the time the decision was made to take land into trust. The
panel also held that the Department of the Interior did not
err in determining that the Ione Band was "under Federal
jurisdiction" at the time that the IRA became law in
the panel held that Department of the Interior did not err in
allowing the Ione Band to conduct gaming operations on the
Plymouth Parcels under the "restored tribe"
exception of the Indian Gaming Regulatory Act. The panel held
that the agency's decision to grandfather in the Ione
Band under 25 C.F.R. § 292.26(b) was permissible.
GRABER, CIRCUIT JUDGE.
case involves a dispute over a proposed casino in Amador
County, California. Plaintiff, the County of Amador
("County"), challenges a 2012 record of decision
("ROD") issued by the United States Department of
the Interior ("Interior") in which the agency
announced its intention to take land into trust for the
benefit of the Ione Band of Miwok Indians ("Ione
Band" or "Band"). The ROD also allowed the
Ione Band to build a casino complex and conduct gaming on the
land once it is taken into trust. Reviewing Interior's
decision under the Administrative Procedure Act
("APA"), we conclude that the agency did not err.
Accordingly, we affirm the district court's award of
summary judgment to Interior and the Ione Band.
AND PROCEDURAL HISTORY
County is located roughly 45 miles southeast of Sacramento in
the foothills of the Sierra Nevada Mountains. The county is
rural, with a population density well below the state
average, and it contains just five incorporated cities.
Ione Band's origins lie in the amalgamation of several
"tribelets" indigenous to Amador County and the
surrounding area. The tribelets, which included the Northern
Sierra Miwok and the Wapumne, were independent,
self-governing groups that maintained their own territories
but regularly interacted with one another. The political and
geographic lines separating the tribelets began to erode in
the 18th and early 19th centuries, as Spanish and Mexican
missionary efforts and the arrival of white settlers in the
area decimated the Native American population and displaced
many villages. The discovery of gold in the area in 1848 and
the subsequent inpouring of miners and prospectors
accelerated the process of amalgamation. For instance, the
Foothill Nisenan living in the American River drainage were
displaced by miners and were forced to move south, where they
joined with Plains Miwok and Northern Sierra Miwok.
arose between the miners and settlers who flooded into
California beginning in 1848, on the one hand, and the Native
Americans already in the vicinity, on the other. The federal
government tried to ameliorate the situation by convincing
Native Americans to give up their lands and move to
"safer" areas. In 1851, federal agents negotiated
18 treaties with Native Americans that required such
resettlement. One of those treaties-Treaty J-was signed by
members of some of the tribelets that would eventually blend
together to form the Ione Band. Treaty J set aside land for
those tribelets in what is now Amador County. The land, which
included the site of the proposed casino, was to be "set
apart forever for the sole use and occupancy of the tribes
whose representatives signed the treaty." Neither Treaty
J nor any of the other treaties ever went into effect,
however. The California legislature, which opposed the
assignment of the lands to Native Americans, successfully
lobbied against the treaties and, in 1852, the United States
Senate voted not to ratify the treaties. Larisa K. Miller,
The Secret Treaties With California's Indians,
Prologue Magazine, Fall/Winter 2013.
the latter half of the 19th century, Native Americans in the
Amador County area continued to be displaced by white
settlers. By 1900, most Native Americans lived either in
remote settlements or on the edges of towns. They were
largely destitute and often lacked permanent homes. Congress
felt that California was largely responsible for this state
of affairs and would have to play a primary role in
addressing the problem of the "landless Indians, "
but its position changed in 1905 when the 18 unratified
treaties from the 1850s were brought to light. Id.
The treaties had been printed "in confidence" in
1852 and could not be accessed by the public from the Senate
archives, so they had been largely forgotten. Id. at
43. Two activists convinced Senator Thomas Bard of California
to have the treaties printed. After he did, Congress was
forced to acknowledge the role that it had played in creating
the problem of landless Indians in California. Id.
Capitalizing on the change in sentiment among his colleagues,
Senator Bard proposed an amendment to the Indian
Appropriations Act of 1905 that authorized the Secretary of
the Interior ("Secretary") to "investigate . .
. existing conditions of the California Indians and to report
to Congress . . . some plan to improve the same." Pub.
L. No. 58-212, 33 Stat. 1048, 1058 (1905).
Secretary tasked C.E. Kelsey with conducting the
investigation into the condition of Native Americans in
California. In Kelsey's 1906 report to the Commissioner
of Indian Affairs, he recommended that Native Americans in
Northern California who were "landless through past acts
[or] omissions of the National Government . . . receive land
in lieu of any claims they may have against the Government,
moral or otherwise; that the land . . . be of good quality
with proper water supply, and . . . be located in the
neighborhoods in which the Indians wish to live."
Indian Tribes of California: Hearings Before a Subcomm.
of the H. Comm. on Indian Affairs, 66th Cong. 131, at
23-24 (1920) (Report of the Special Agent for California
Indians to the Commissioner of Indian Affairs, Mar. 21,
1906). The Commissioner, in turn, recommended to Congress
that it appropriate money to carry out Kelsey's plan.
Congress responded by appropriating $100, 000 in 1906 for the
purchase of land in California for "Indians . . . now
residing on reservations which do not contain land suitable
for cultivation, and for Indians who are not now upon
reservations." Pub. L. No. 59-258, 34 Stat. 325, 333
(1906). Congress continued to appropriate money for that
purpose almost every year until the passage of the Indian
Reorganization Act in 1934 made such annual appropriations
unnecessary. William Wood, The Trajectory of Indian
Country in California: Rancherías, Villages, Pueblos,
Missions, Ranchos, Reservations, Colonies, and
Rancherias, 44 Tulsa L. Rev. 317, 357-58 (2008).
also prepared a census of non-reservation Indians living in
California. That census served as a guide for John Terrell, a
Special Agent with Interior's Bureau of Indian Affairs
who traveled to California in 1915. Terrell was to assess
which groups of Indians were in need of land and was to
negotiate purchases of land for their benefit. Terrell
visited the Native Americans living near Ione and counted
some 101 members of the Ione Band, including Charlie Maximo,
the recently elected Chief of the Band. In a May 1915 letter
to the Commissioner of Indian Affairs, Terrell wrote that,
"[o]f all the Indians I have visited, " the members
of the Ione Band "have stronger claims to their ancient
Village than any others." After visiting the Band,
Terrell almost immediately set about trying to buy some of
the land on which the Band resided, for use as a permanent
home for the Band.
August 1915, Terrell reached an agreement for the purchase of
40 acres at a total price of $2, 000. But the purchase
stalled because of problems with the title to the property.
For years, various officials with Interior tried to close the
deal, but with no success. In a July 1923 letter, one
Interior official wrote that the agency "ha[d] tried
very hard for five years to get this sale through because . .
. [the Ione Band], if dispossessed, would be placed in such
shape as to call forth untold criticism by all people knowing
the circumstances of their occupation of this land as
homesites for years." A different Interior official
wrote, in a January 1924 letter, that the deal was "all
but closed." More than five years later, though, the
transaction still had not been consummated. As one official
wrote to a member of the Band in a May 1930 letter,
"[w]e have for more than eight years been negotiating
with owners of the [land] for the purpose of purchasing same,
but because of our inability to get a clear title to the
land, the deal has not been closed."
1934, Congress enacted the Indian Reorganization Act
The IRA was designed to improve the economic status of
Indians by ending the alienation of tribal land and
facilitating tribes' acquisition of additional acreage
and repurchase of former tribal domains. Native people were
encouraged to organize or reorganize with tribal structures
similar to modern business corporations. A federal financial
credit system was created to help tribes reach their economic
objective. Educational and technical training opportunities
were offered, as were employment opportunities through
federal Indian programs.
Cohen's Handbook of Federal Indian Law §
1.05, at 81 (Nell Jessup Newton ed., 2012) [hereinafter
Cohen's Handbook]. Relevant to this case, the
IRA gave the Secretary of the Interior the power to take land
into trust for a tribe's use.
1972, the California Rural Indian Land Project, acting on
behalf of the Band, asked the federal government to accept
title to the same 40-acre tract that the government had tried
to buy years earlier and to hold the land in trust for the
Band. In October of that year, Robert Bruce, the Commissioner
of Indian Affairs, agreed to do so. In his letter to the
Band, Bruce wrote:
Federal recognition was evidently extended to the Ione Band
of Indians at the time that the Ione land purchase was
contemplated. As stated earlier, they . . . are eligible for
the purchase of land under [the IRA].
federal government did not take the land into trust at that
time, however, because several officials within Interior
questioned Commissioner Bruce's conclusion that the Ione
Band was eligible to have land taken into trust for its
benefit under the IRA. In 1973, for instance, the Deputy
Assistant Secretary of the Interior wrote a letter stating
that "[t]he former contemplated purchase of land for
[the Ione Band] by the United States may indicate that they
are a recognizable group entitled to benefits of the [IRA].
We have no correspondence, however, from the group requesting
recognition or a desire to establish a reservation. . . . If
the Band desires and merits Federal recognition, action
should be taken to assist them to perfect an organization
under the provisions of the [IRA]."
1978, Interior promulgated what are known as the "Part
83" regulations, 25 C.F.R. pt. 83 "The purpose
of [the Part 83 regulations] [wa]s to establish a
departmental procedure and policy for acknowledging that
certain American Indian tribes exist. Such acknowledgment of
tribal existence . . . is a prerequisite to the protection,
services, and benefits from the Federal Government available
to Indian tribes, " including the benefits of the IRA.
Procedures for Establishing That an American Indian Group
Exists as an Indian Tribe, 43 Fed. Reg. 39, 361-01, 39, 362
(Aug. 24, 1978). "Prior to 1978, Federal acknowledgment
was accomplished both by Congressional action and by various
forms of administrative decision. . . . The [Part 83]
regulations established the first detailed, systematic
process for review of petitions from groups seeking Federal
acknowledgment." Procedures for Establishing That an
American Indian Group Exists as an Indian Tribe, 59 Fed. Reg.
9280-01, 9280 (Feb. 25, 1994).
the promulgation of the Part 83 regulations, Interior began
to take the position that the Band had not yet been
recognized by the federal government and that it had to
proceed through the Part 83 regulations if it wished to be
recognized. When the Band sued the federal government in
1990, for instance, the government took the position that the
Band was not a recognized tribe.
1994, the federal government changed its mind about the
Band's "recognized" status. In a March 1994
letter to the Chief of the Band, Assistant Secretary of
Indian Affairs Ada Deer "reaffirm[ed] the portion of
Commissioner Bruce's  letter" that stated that
"Federal recognition was evidently extended to the Ione
Band of Indians at the time that the Ione land purchase was
contemplated." Assistant Secretary Deer further ordered
that the Ione Band be included on the official list of
"Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs,
" which was published in the Federal Register. The Band
was included on the list beginning in 1995.
Congress passed the Indian Gaming Regulatory Act
("IGRA") in 1988. Section 20 of IGRA limits
"gaming . . . on lands acquired by the Secretary in
trust for the benefit of an Indian tribe after the date of
enactment of" the statute, allowing gaming in just a few
circumstances. Pub. L. No. 100-497, § 20, 102 Stat.
2467, 2485-86 (1988), codified at 25 U.S.C. §
2719(a). One such circumstance exists when "lands are
taken into trust as part of . . . the restoration of lands
for an Indian tribe that is restored to Federal
recognition." Id. §
2719(b)(1)(B)(iii). That exception is called the
"restored tribe" or "restored lands of a
restored tribe" exception.
September 2004, the Band submitted a request to the National
Indian Gaming Commission ("Gaming
Commission") for an Indian lands determination-a ruling
as to the eligibility of land to be used for gaming-regarding
some land known as the Plymouth Parcels. While that request
was pending, the Band submitted a "fee-to-trust"
application to Interior, asking that the Secretary accept
trust title to the Plymouth Parcels. Under then-applicable
Interior practice, a fee-to-trust application seeking to use
the newly acquired lands for gaming under the "restored
tribe" exception of IGRA required "[a] legal
opinion from the Office of the Solicitor concluding that the
proposed [land] acquisition" came within the exception,
and the Indian lands determination would constitute such a
legal opinion. Pursuant to a memorandum of agreement between
the Gaming Commission and Interior, the Associate Solicitor
in Interior's Division of Indian Affairs prepared an
Indian lands determination in September 2006 ("2006
Determination"). The Associate Solicitor concluded that
"Assistant Secretary Deer's  . . .
reaffirmation of Commissioner Bruce's  position
amounts to a restoration of the Band's status as a
recognized Band. Under the unique history of its relationship
with the United States, the Band should be considered a
restored tribe within the meaning of IGRA." The
Associate Deputy Secretary for Indian Affairs concurred in
that determination and notified the Band of his concurrence
later in September 2006. After receiving the 2006 Determination,
the Band continued to pursue its fee-to-trust application.
the next few years, Interior engaged in an internal dispute
about the correctness of the 2006 Determination. While that
was occurring, the Supreme Court decided Carcieri v.
Salazar, 555 U.S. 379 (2009), a case that concerned the
meaning of the phrase "recognized Indian tribe now under
Federal jurisdiction" in the IRA. The Court ruled that a
tribe must have been "under Federal jurisdiction"
at the time the IRA ...